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PETITIONER: RAJA SOMASEKHAR CHIKKA AND ANR.

       Vs.

RESPONDENT: M. PADURAVATAMMA AND ORS. ETC.

DATE OF JUDGMENT:       22/04/1999

BENCH: U.C.Banerjee, B.N.Kirpal

JUDGMENT:

KIRPAL, J.

     Punganur  Estate  in  Chittoor   District  in   Andhra Pradesah was an impartible estate of which Raja Veera Basava Chikkar  Royal  Varu  was the last Zamindar.   The  question involved  in  these appeals by special leave relates to  the alienations  made by the said Raja of some of the properties which formed part of the said estate.

     It is an admitted case that the estate was governed by the  provisions of the Impartible Act 1904.  Under Section 4 of  the  said  Act  the Zamindar had no  right  to  alienate impartible  property  beyond his life time.  The estate  was governed  by  the  rule of primogeniture and  an  alienation under  the  1904  Act  could, inter alia, be  done  for  the benefit of the family.

     In  1908  the  Madras  Estates  Land  Act  was  passed defining  the  substitution,  rights   and  liabilities   of land-holders of ryoti and made declarations of the existence of  the  occupancy  rights  of the ryoti.   The  lands  were divided into two classes;  [1] ryoti land and ;  [2] private land.   It  is not necessary to consider this Act  in  great detail  because it is not in dispute that the Raja continued to  be  the  Zamindar of the Punganur estate.  In  1948  the Madras  Estate (Abolition and Conversion into Ryotwari)  Act (hereinafter referred to as the ‘Abolition Act’)was enacted. The  said Act was made applicable to the Andhra area and the erstwhile State of Madras so as to provide for the repeal of the  Permanent Settlement, the acquisition of the rights  of landholders in permanently settled and certain other estates in  the  Province  of Madras, and the  introduction  of  the ryotwari settlement in such estates.

     The  Punganur Estate was notified under the  Abolition Act and taken over by the Government on 7th september, 1965. During  his  life time the Raja, who died in the year  1965, had alienated various properties to different persons.  Some of  the alienations were prior to 7th September, 1950, while the  others  were  after  the   Abolition  Act  had   become applicable  to the said estate.  After the Raja’s death  his two  sons filed two separate suits, OS No.33 of 1969 and  OS No.86  of  1971in  the Subordinate  Court,  Madanapalle  for partition  and  separate  possession of  their  share  after declaring  the alienations made by the Raja in favour of the defendants  as  not  being  binding on them  and  for  mesne

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profits.   Their  case  was  that  Punganur  estate  was  an impartible  estate and alienations made by the last Zamindar prior  to 7th September, 1950were not for legal  necessities or  for  the benefit of the estate and the alienations  were valid only during the Zamindar’s life time.  After his death in  1965  it was claimed that the succession opened and  the alienations  were not binding on the plaintiffs who, it  was submitted,  had become tenants of the joint family by virtue of  the Abolition Act 1948 and, therefore, they could file a suit for partition and claim their share.

     The defendants in their written statement resisted the suit  by contending that after its abolition the estate  had vested  in  the Government and the plaintiffs had ceased  to have  any  rights  therein  and, therefore,  the  could  not question  the alienations affected by their father.  Some of the defendants submitted that the alienations were for legal necessity  or for the benefit of the estate and consequently they  were  binding upon the plaintiffs.  An  objection  was also  raised  that since under the Abolition Act the  estate vested  in the Government the plaintiffs could not claim the properties  in the estate to be their own and file the  suit for  partition.   The plaint contained a schedule  in  which various  properties in respect of which partition was sought were  enumerated.   In  respect  of some  of  the  items  of property  the  plaintiffs and the defendants entered into  a compromise  while  in respect of some other items the  suits were decreed in the absence of any contest by the defendants who  were interested in those items.  In the present appeals we  are  concerned only with items (1), (4), (5), (8),  (9), (12) and (31).

     In  respect of properties/items 1, 2 and 12 the  trial court  held the alienations to be binding on the plaintiffs. Item no.1 was a property in respect of which by a deed dated 6th  April 1946 the Zamindar transferred the property to one T.  Rangaswamy Chetty under an unusfructuary mortgage.  This property  was then sold to defendant no.5 on 16th  December, 1949 for discharging the mortgage debt.  Defendant no.5 sold the  same  to  defendant  no.6  the  said  property  on  5th September,  1952.  The alienation by the Zamindar was upheld by  the trial court on the basis that it had taken place  on account of legal necessity.

     Item  no.2  relates to sale of building by  sale  deed dated 26th April, 1951.  The trial court held that a pronote had  been  executed by the Zamindar and a decree was  passed against  him  in  order  to pay the  decretal  amount.   The property  was  sold  on 26th April, 1951 and  the  drecretal amount  of Rs.1250/- was paid.  It was, therefore, held that the sale was binding on the estate.

     Items  5  and 8 were vacant pieces of land which  were given  under  an  oral gift by the Zamindar to  one  of  his servants  on 22nd August, 1946.  In respect of these gifts a settlement  deed was executed on 29th February, 1952.   Item no.8  was  a subject matter of further sale on 6th  October, 1958.   The trial court held that there was nothing to  show that  the said alienations were for legal necessity and  the Zamindar had no right to gift the property, therefore, these alienations were held to be not binding on the plaintiffs.

     Item  no.9  was a piece of land which was sold on  7th October, 1952 to the village Munsiff.  The land was situated in  the  Enam  village  but the trial court  held  that  the

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alienation  of this was not binding on the plaintiffs.  Item no.4  was  a vacant site which was sold by the  Zamindar  on 15th  September, 1952 and the trial court held that the said sale was also not binding on the plaintiffs.  Item no.12 was a  building site the sale deed of which was executed by  the Zamindar  and  the  plaintiffs’ mother, for herself  and  as mother and guardian of the minor plaintiffs.  This sale deed was  executed on 25th February, 1959 but the trial court did not  give any relief to the plaintiffs because there was  no prayer in the plaint for the setting aside of the sale deed.

     The  plaintiffs  as  well as the defendants  who  were aggrieved  by the decision of the trial court filed  appeals in  the High Court.  By the impugned judgment the High Court dismissed  the  appeals of the plaintiffs while the  appeals filed  by the defendants were allowed.  The High Court held, agreeing with the trial court, that the suit properties were part  of the impartible estate.  It, however, held that with coming into force of the Abolition Act;  (1) the landholders could  claim  the  rights only under the said  Act  and  the plaintiffs  had  no right therein;  (2) the totality of  the interest  vested  in  the Government and no one  else  could alienate;  (3) the building and the estate first vest in the Government  and thereafter may vest in the person who  owned them.

     The  High Court also laid emphasis on the fact that on 17th  April, 1955 there was a partition between the Zamindar and   his  two  sons,   namely,  plaintiffs,  by  registered document.   This  deed  showed all the ancestral  and  joint family  properties  which were existing and were divided  on that day.  None of the suit properties were included in this document.   The  High Court, therefore, concluded  that  the plaintiffs  and  their  father  did not  consider  the  suit properties to be joint family properties.

     The  main  contention of the learned counsel  for  the appellants  was that the alienations prior to 7th September, 1950  were  invalid as being contrary to the 1904 Act.   The properties  in question were joint family properties and the Zamindar  could  not  alienate the  same.   Developing  this argument,  he  submitted that with the promulgation  of  the Abolition  Act  1948  these  properties would  vest  in  the original  owner and after 1956 Act it would become partible. With  regard  to  the effect of the Abolition Act  1948  the learned  counsel  submitted that even though all  the  lands which formed part of the impartible estate would vest in the government  under Section 3 of the Act but buildings covered by  Section 18 (4) continued to vest in the erstwhile owners and the same would not vest in the government.

     The    question   which,     therefore,   arises   for consideration is that with the promulgation of the Abolition Act  which  is the property which vests in  the  Government. The two provisions which are relevant in this connection are Sections 3 and 18 which are as follow:

     Section  3:  With effect on and from the notified date and  save as otherwise expressly provided in this Act -  the Madras  Permanent  Settlement Regulation, 1802, the  Estates Land  Act, and all other enactments applicable to the estate as  such except the Madras Estates Land (Reduction of  Rent) Act,  1947, shall be deemed to have been repealed, in  their application to the estate;  the entire estate (including all communal  lands  and  porambokes;   other  non-ryoti  lands;

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waste  lands;  pasture lands;  lanka lands;  forests;  mines and  minerals;   quarries;  rivers and streams;   tanks  and irrigation  works;   fisheries;  and ferries),  shall  stand transferred  to the Government and vest in them, free of all encumbrances;   and  the Madras Revenue Recovery Act,  1864, the  Madras  Irrigation  Cess  Act,   1865  and  all   other enactments  applicable to ryotwari areas shall apply to  the estate;   all  rights and interests created in or  over  the estate  before  the  notified date by the principal  or  any other  landholder, shall as against the Government cease and determine;    the  Government  may,   after   removing   any obstruction  that may be offered, forthwith take  possession of   the  estate,  and   all  accounts,  registers,  pattas, muchilikas,  maps, plans and other documents relating to the estate   which   the   Government   may  require   for   the administration thereof:

     Provided  that the Government shall not dispossess any person  of  any land in the estate in respect of which  they consider that he is prima facie entitled to a ryotwari patta if  such  person  is  a ryot, pending the  decision  of  the Settlement  Officer as to whether he is actually entitled to such  patta;   if such person is a landholder,  pending  the decision  of  the  Settlement Officer and  the  Tribunal  on appeal, if any, to it, as to whether he is actually entitled to such patta;

     the  principal  or any other landholder and any  other person  whose  rights stand transferred under clause (b)  or cease  and determine under clause c, shall be entitled  only to compensation from the Government as provided in this Act; the  relationship  of landholder and ryot shall, as  between them,  be  extinguished;   ryots in the estate  and  persons holding  under  them  shall, as against the  Government,  be entitled  only  to  such  rights   and  privileges  as   are recognised  or  conferred on them by or under this Act,  and any  other  rights and privileges which may have accrued  to them  in  the  estate before the notified date  against  the principal  or  any other landholder thereof shall cease  and determine   and  shall  not  be  enforceable   against   the Government or such landholder.

     Section  18:   (1) Every building situated within  the limits  of an estate, which immediately before the  notified date,  belonged to any landholder thereof and was then being used   by   him  as  an   office  in  connection  with   its administration  and for no other purpose, shall vest in  the Government,  free  of all encumbrances, with effect  on  and from the notified date.

     Every  building so situated which, immediately  before the  notified date, belonged to any such landholder and  the whole  or principal part whereof was then in the  occupation of  any  religious, educational or  charitable  institution, shall also vest in the Government, free of all encumbrances, with effect on and from the notified date:

     Provided  that when such institution ceases to  exist, the  building  shall revert to such landholder, or if he  is dead, to his heirs or legal representatives.

     Where  any building so situated- Which belonged to any such landholder on the Ist day of July, 1947;  and (i) which on  that  date  was  being  used by  him  as  an  office  in

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connection with the administration of the estate, and for no other purpose, or the whole or principal part whereof was on that date in the occupation of any religious, educational or charitable  institution has after the Ist day of July,  1947 and  before the notified date, been sold or made a gift  of, by  the landholder, or ceased to be used by him as an office as  aforesaid,  or  ceased to be in the occupation  of  such institution,  the value of the building shall be assessed by the  Tribunal in such manner as may be prescribed;  and  the Tribunal  shall pay to the government such value from out of the  compensation deposited in its office under Section  41, sub-section (1).

     Every  building  other than a building referred to  in sub-sections (1), (2) and (3) shall, with effect on and from the  notified  date,  vest  in   the  person  who  owned  it immediately  before  that date, but the Government shall  be entitled-

     in  every  case,  to levy the  appropriate  assessment thereon;   and  in the case of a building which vests  in  a person  other than a landholder, also to the payments  which such  person was liable immediately before the notified date to  make  to  any  landholder in  respect  thereof,  whether periodically or not and whether by way of rent or otherwise, in  so far as such payments, may accrue due on or after  the notified  date.   In this section, "building"  includes  the site  on which it stands and any adjacent premises  occupied as  an appurtenance thereto.  If any question arises whether any building or land falls or does not fall within the scope of  sub-section  (1),  (2),  (3), (4) or (5),  it  shall  be referred  to  the Government whose decision shall be  final, and not be liable to be questioned in any court of law.  Any person holding a mortgage or charge on any building referred to  in  sub-section  (1) or sub-section (2) shall,  for  the purpose of section 42, be a secured creditor and be entitled to  priority  over any person holding a mortgage  or  charge subsequently  created by the landholder over any part of the estate.

     The  consequence of the notification of the Estate  is dealt  with by Section 3 of the Abolition Act.  It  provides that  with effect from the notified date, the entire  estate stands transferred to the Government and vests in it free of all   encumbrances.   But  the   words  "save  as  otherwise expressly  provided  in  this Act" in the  opening  part  of Section  show  that the Act could specifically  provide  for some  property  of the Estate not being transferred  to  and vesting in the Government.  In other words as per Section 3, the  entire  estate stands transferred to and vests  in  the Government save those properties in respect of which the Act specifically provides for others.

     Section  18  deals  with the " buildings  in  Estate". Sub-section  (1) applies only to a building situated  within the  limits  of an estate.  This sub section  provides  that such building which immediately before the notified date was being  used  as  an office in connection with  its  (estate) administration,  and for no other purpose, then the building shall vest free of all encumbrances with the Government.  As a  result  of this sub section, along with the  estate,  the building situated within the limits of the estate, but which was  being used for office purpose, was also to vest in  the Government.

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     Like  sub-section (1), sub-section (2) also deals with the buildings within the limit of the estate but which were, immediately  before the notified date, being used only as  a principal  part for any religious, educational or charitable institution.   Such  buildings  were  also to  vest  in  the Government  with effect from the notified date.  The proviso to  this  sub-section  stipulates that when  the  religious, educational  or charitable institution ceases to exist  then the  building  which  was used for the  said  purpose  shall revert to the land holder or, if he is dead, to his heirs or legal representatives.

     Sub-section  (3)  deals with a case where between  1st July,  1947  and  the  notified date,  the  buildings  which belonged  to  the  land owners and were being used  for  the purpose  mentioned in the sub-sections 1and 2, had been sold or  gifted  by  the landholder or had ceased to be  used  as office or to be in occupation of the institution.  In such a situation  out  of  the  compensation payable  to  the  land holder,  the  tribunal  was to pay to the Government  a  sum equivalent  to the value of the building whose use had  been altered after Ist July, 1947.

     Sub-section  (4),  on which strong reliance  has  been placed  by  the  appellant’s counsel,  provides  that  every building, other than the one referred to in sub-sections 1,2 and  3 shall with effect from the notified date vest in  the person who owned it immediately before that date.  It, inter alia, provides that the Government shall be entitled to levy appropriate assessment on the said building.

     We   find  that  proviso  to  sub-sections   (2)   and sub-section  (4) of Section 18 contemplates cases where  the buildings  are  to  vest in the persons who owned  the  same immediately  before  the notified date.  This is clear  from the  language  of the said provisions.  On the  other  hand, sub-sections  (1)  and  (2)  of  Section  18  specify  those buildings which are to vest in the Government.  If Section 3 had provided for all the properties of the estate to vest in the  Government  then there would have been no necessity  of enacting  Section  18  and  sub-sections   (1)  and  (2)  in particular.   The  legislative intent, to our mind,  clearly seems to be that buildings in the estate and other buildings belonging  to  it were treated in a manner differently  than the rest of the estate.  It is for this reason that specific provision regarding buildings was made in Section 18.

     A  Zamindary estate may include and consist of various types  of buildings within and outside the limit of  estate. The  object  of the Act being to provide for acquisition  of the  rights  of  the  land holder and  introduction  of  the Ryotwari  settlement  in  such estates, i.e., to  bring  the Zamindary  system  to  an end and distribute the land  as  a manner  indicated  in the Act, the buildings of  the  estate were  dealt with in a different manner.  When in the opening part  of  Section 3, the words used are "save  as  otherwise expressly  provided  in  this  Act", the  exception  to  the vesting  of  the  entire  estate  under  Section  3  in  the Government  is clearly contained in proviso to Section 18(2) and in Section 18(4).

     The  High  Court,  in our opinion, was  not  right  in holding  that  the  entire estate  including  the  buildings vested  in  the  Government by virtue of Section  3  of  the Abolition Act and the earstwhile Zamindar could not alienate

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any  property  after  the estate had been notified  and  the plaintiffs had no right to challenge the alienations so made on this ground alone.

     This  Court in Rajah Velugoti Kumara Krishan Yachendra Vs.   Rajah Velugoti Sarvagna Kumara Krishna Yachendra  Varu and  Ors.  ([1970] (3) SCR 88) has held that in relation  to the  properties of the estate which had not become vested in the Government by operation of Section 3(b) of the Abolition Act,  Madras Impartible Estates Act, 1904 continues to be in force  and the properties retain their impartible character. Therefore,  in  respect  of  the properties  of  the  estate referred  to  in  the proviso to Section 18(2)  and  Section 18(4),  would  continue to be covered by the  provisions  of Impartible  Estates Act, 1904 and the said properties  would be unaffected by the enactment of the Abolition Act.

     Before dealing with the individual items in dispute in the  present cases, it is necessary to determine as to  what is the meaning of the word "building" referred to in Section 18(4)  of  the Act.  Sub-section (5) of Section 18  provides that a building includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto.  This sub-section  seems to indicate that a piece of land on which there  is no construction, answering the description of  the building  would  not  be covered by Section 18(4).   By  the inclusive  definition of the building in Section 18(5),  the site  on  which a building stands and any adjacent  premises occupied  as  an appurtenance thereto has been included.   A vacant  site  on  which  a building can  be  constructed  is certainly  not  covered  by  the   definition  of  the  word "building"  contained  in  Section 18(5).  It is  with  this background  that we now proceed to consider, in the light of the  interpretation  of Sections 3 and 1, the various  items which  are the subject-matter of these appeals, i.e.,  items no.   1,  4, 5, 8, 9, 12 and 31 which were described in  the schedule to the plaint.

     Item  No.   1  is  a property which was  sold  by  the Zamindar  prior  to the notified date.  The trial  court  as well  as the High Court has held that the sale was for legal necessity.  It is not in dispute that according to Section 4 of  the  1904  Act,  the property which was a  part  of  the impartible  estate  could be sold by the Zamindar for  legal necessity.   The  finding of fact arrived at by  the  courts below  that  this  sale was for the purpose  of  discharging mortgage  debt  and,  therefore,  was valid,  calls  for  no interference.

     As far as item no.  4 is concerned, the High Court has described  this  property  as  ‘" a vacant  site  and  urban terrace  house".  There was an oral sale in respect of  this house  on 1st December, 1947 in favour of defendant no.   8. This  was  followed  by a registered sale  deed  dated  15th September,  1952.   The  eigth defendant in turn  sold  this property  to  the ninth and fifth defendants  by  registered sale deed dated 15th July, 1967.  The trial Court as well as High  Court  has  held  that  the sale  was  not  for  legal necessity.   The High Court did not grant any relief to  the appellant  herein  and  had  set aside the  finding  of  the subordinate  judge  with regard to this item on  the  ground that  the entire estate had vested in the Government and  it was  only the Government which could question the alienation by  the earstwhile Zamindar.  We, however, find that in  the plaint  of the suit no.  OS 86 of 1971 it is stated that the

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late  Zamindar had executed the two sale deeds in respect of this  property  for the purpose of establishing a temple  of Sai  Baba.  On the basis that this property did not vest  in the  Government,  being covered by Section 18 (4)  then  the provisions of the 1904 Act would apply.  While Section 4 (1) of  the  1904  Act  plans  restrictions  on  alienations  of impartible  estates, sub-section (2) of Section 4  specifies permissible  alienations.   Clause  (a)  of  Section  4  (2) authorises  the proprietor of an impartible estate "to grant sites   for   public  charitable    and   public   religious instrituions."  The alienations of this property, as far  as the  Zamindar was concerned, for the purpose of putting up a Sai  Baba Temple was clearly covered by Section 4 (2) (a) of the  1904  Act  and the alienation is also  upheld  on  this ground.

     Items 5 and 8 are described by the High Court as being ‘two  small sites in Punganur town’.  There was, at the time when  Abolition Act became applicable, no building on  these sites.  These plots would not fall within the meaning of the word ‘building’ and would be outside the scope of Section 18 (4)  of  the Abolition Act.  These sites  would,  therefore, vest  in the Government under Section 3 of the said Act  and the  plaintiffs  would  have no right to file  any  suit  in respect thereof.

     In  respect of items 9 and 31 the High Court held that the   relief  sought  for  in   the  suit  swas  within  the jurisdiction  of the Tribunal under the Abolition Act.   The High  Court vacated the Trial Court’s findings in regard  to these  items  and  left it to the parties  to  agitate  them before  the  settlement authorities under the Act.   In  our view  this direction of the High Court appears to be correct and calls for no interference.

     The alienation of item no.12 was not set aside because the High Court, agreeing with the Trial Court, held that the alienation was by the Zamindar and his wife, in her capacity as guardian of the plaintiffs, who were minors at that time, and  as  the plaintiffs were thus parties to the  alienation they  could  not challenge the same.  This apart, this  item was  only  a vacant parcel of land which was not saved  from vesting  under  Section  18 (4) of the  Abolition  Act  and, therefore, the plaintiffs could not file any suit in respect thereof.

     For the reasons above mentioned we find that no relief can  be  granted  to  the appellants  and  the  appeals  are accordingly dismissed but with no order as to costs.